R. v. Bulldog (D.W.), (2015) 606 A.R. 261

• Judge: Côté, Bielby and Brown, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 04, 2015
• Citations: (2015), 606 A.R. 261;2015 ABCA 251

R. v. Bulldog (D.W.) (2015), 606 A.R. 261; 652 W.A.C. 261 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JL.100

Her Majesty the Queen (respondent) v. Dustin Wade Bulldog (appellant)

(1403-0012-A)

Her Majesty the Queen (respondent) v. Colten Peter Dylan Joe (appellant)

(1403-0013-A)

Her Majesty the Queen (respondent) v. Steven Jeffrey Giesler (appellant)

(1403-0019-A; 2015 ABCA 251)

Indexed As: R. v. Bulldog (D.W.)

Alberta Court of Appeal

Côté, Bielby and Brown, JJ.A.

July 23, 2015.

Summary:

The accused and the complainant were inmates at the Edmonton Institution. The complainant was beaten in an exercise yard. The accused were convicted of assault causing bodily harm. They appealed from the convictions.

The Alberta Court of Appeal dismissed the appeals.

Criminal Law - Topic 1342

Offences against person and reputation - Causing bodily harm - What constitutes bodily harm - The accused were convicted of assault causing bodily harm - The accused and the complainant were inmates at the Edmonton Institution, where the assault took place - The accused appealed from their convictions, asserting, inter alia, that the trial judge had erred in finding that the complainant's injuries constituted bodily harm - The Alberta Court of Appeal dismissed the appeals - The complainant was attacked and beaten by three fellow inmates in an exercise yard - His visible wounds clearly constituted "bodily harm" - He required treatment at a hospital and post-treatment monitoring - He was obviously caused discomfort - It would have defied good sense for the trial judge to have concluded otherwise - See paragraphs 42 to 46.

Criminal Law - Topic 5252.1

Evidence and witnesses - Identification - From videotape or audio tape (incl. computer enhanced images) - [See all Criminal Law - Topic 5360 ].

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, audiotapes, etc. - General principles, admissibility, etc. - The accused and the complainant were inmates at the Edmonton Institution - The complainant was beaten in an exercise yard - The accused were charged with assault causing bodily harm - One of the principal issues at trial was identity - The Crown's evidence on identity included a DVD purportedly containing a video recording of the yard when the fight occurred - The accused were convicted - On appeal, they asserted, inter alia, that the trial judge had erred in admitting the DVD - The Alberta Court of Appeal dismissed the appeals - The Crown did not have to prove that the DVD had not been altered - There was an important distinction between recordings (video or audio) and other forms of real evidence that supported a test of "substantial" accuracy over the accused's preferred test of "not altered" - With recordings, the claim of authentication was not that the recording "was" something, but that it "accurately represented" something - What mattered was the degree of accuracy of the representation - As long as other evidence satisfied the trier of fact of the required degree of accuracy, no evidence regarding the presence or absence of alteration was necessary - The mere fact of alteration did not automatically render a video recording inadmissible - The Crown's failure to establish that the DVD was not altered was not fatal as long as the Crown had proven that the DVD was a substantially accurate and fair representation of what it purported to show - See paragraphs 26 to 33.

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, audiotapes, etc. - General principles, admissibility, etc. - The accused and the complainant were inmates at the Edmonton Institution - The complainant was beaten in an exercise yard - The accused were charged with assault causing bodily harm - One of the principal issues at trial was identity - The Crown's evidence on identity included a DVD purportedly containing a video recording of the yard when the fight occurred - The accused were convicted - On appeal, they asserted, inter alia, that the trial judge had erred in admitting the DVD - The Alberta Court of Appeal dismissed the appeals - The video evidence did not have to be authenticated by an eyewitness or by a member of a particular class of qualified persons identified by the accused - Other kinds of evidence or different combinations of witnesses could be employed to satisfy a court of the DVD's substantial accuracy and fairness - A trial judge was entitled to authenticate a video recording by using circumstantial evidence of one or more witnesses, provided such evidence established to the required standard of proof that the video in question was a substantially accurate and fair depiction of what it purported to show - See paragraphs 34 to 37.

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, audiotapes, etc. - General principles, admissibility, etc. - The accused and the complainant were inmates at the Edmonton Institution - The complainant was beaten in an exercise yard - The accused were charged with assault causing bodily harm - One of the principal issues at trial was identity - The Crown's evidence on identity included a DVD purportedly containing a video recording of the yard when the fight occurred - The accused were convicted - On appeal, they asserted, inter alia, that the trial judge had erred in admitting the DVD - The Alberta Court of Appeal dismissed the appeals - There was sufficient evidence before the trial judge to admit the DVD - This included eyewitness evidence of the fight and of the aftermath of the fight that was consistent with the DVD's contents and evidence that the DVD shown in court was the same as the one that several witnesses had viewed earlier - Nothing gave rise to a concern that the DVD had been altered - There was nothing unreasonable in the trial judge's conclusion that it was more likely than not that the DVD was authentic and a substantially accurate and fair depiction of what happened - See paragraphs 38 to 41.

Evidence - Topic 3686

Documentary evidence - Private documents - Photographs, movies, videotapes, etc. - Videotapes - [See all Criminal Law - Topic 5360 ].

Cases Noticed:

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1; 141 D.L.R.(4th) 647, refd to. [para. 12].

R. v. Underwood (G.R.) (2008), 433 A.R. 298; 429 W.A.C. 298; 2008 ABCA 263, refd to. [para. 17].

R. v. Redford (B.S.) (2014), 584 A.R. 284; 623 W.A.C. 284; 2014 ABCA 336, refd to. [para. 17].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81; 76 C.C.C.(3d) 193, refd to. [para. 18].

R. v. Doughty (G.J.) (2009), 468 A.R. 11; 2009 ABPC 8, refd to. [para. 21].

R. v. Penney (J.S.) (2002), 210 Nfld. & P.E.I.R. 209; 630 A.P.R. 209; 2002 NFCA 15, dist. [para. 22].

R. v. Liang (V.H.) (2008), 446 A.R. 167; 442 W.A.C. 167; 2009 ABCA 2, refd to. [para. 24].

R. v. Jamieson (C.Y.), [2004] O.T.C. 369 (Sup. Ct.), refd to. [para. 28].

R. v. MacNeil, 2008 QCCS 915, refd to. [para. 29].

R. v. Chevannes, 2011 ONCJ 754, refd to. [para. 29].

R. v. K.M.E., [2004] B.C.T.C. 780; 2004 BCSC 780, refd to. [para. 29].

R. v. Brown (L.A.) et al., [1999] O.T.C. 213 (Gen. Div.), refd to. [para. 30].

R. v. Crawford (T.R.) et al., [2013] B.C.T.C. Uned. 2402; 2013 BCSC 2402, refd to. [para. 31].

R. v. Leaney and Rawlinson (1987), 81 A.R. 247; 1987 ABCA 206, refd to. [para. 31].

R. v. Maloney (No. 2) (1976), 29 C.C.C.(2d) 431 (Ont. Co. Ct.), refd to. [para. 31].

R. v. Taylor, [1983] O.J. No. 3354 (Prov. Div.), refd to. [para. 31].

R. v. Creemer and Cormier, [1968] 1 C.C.C. 14 (N.S.C.A.), refd to. [para. 31].

R. v. Veinot (K.A.) (2011), 311 N.S.R.(2d) 267; 985 A.P.R. 267; 2011 NSCA 120, refd to. [para. 33].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81; 108 D.L.R.(4th) 32, refd to. [para. 35].

R. v. Lempen (J.A.) (2008), 338 N.B.R.(2d) 377; 866 A.P.R. 377; 2008 NBCA 86, refd to. [para. 35].

R. v. Schertzer (J.) et al., [2011] O.T.C. Uned. 579; 2011 ONSC 579, refd to. [para. 35].

R. v. L.T.H., [2008] 2 S.C.R. 739; 379 N.R. 247; 268 N.S.R.(2d) 200; 857 A.P.R. 200; 2008 SCC 49, refd to. [para. 38].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 166 D.L.R.(4th) 296, refd to. [para. 38].

R. v. Jeffrey (1993), 141 A.R. 299; 84 C.C.C.(3d) 31; 12 Alta. L.R.(3d) 153; 1993 ABCA 245, refd to. [para. 39].

R. v. Adams (P.F.) et al. (2011), 303 N.S.R.(2d) 356; 957 A.P.R. 356; 274 C.C.C.(3d) 502; 2011 NSCA 54, refd to. [para. 39].

R. v. Murphy - see R. v. Adams (P.F.) et al.

R. v. Dorscheid, 1994 ABCA 18, refd to. [para. 44].

R. v. Dixon, [1988] 5 W.W.R. 577; 42 C.C.C.(3d) 318 (B.C.C.A.), refd to. [para. 44].

R. v. Rabieifar (A.), [2003] O.A.C. Uned. 386 (C.A.), refd to. [para. 44].

R. v. C.K., [2001] B.C.A.C. Uned. 114; 2001 BCCA 379, refd to. [para. 44].

R. v. Moquin (T.D.) (2010), 251 Man.R.(2d) 160; 478 W.A.C. 160; 2010 MBCA 22, refd to. [para. 44].

Authors and Works Noticed:

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed.) (2010 Looseleaf Update), p. 16:104-105 [para. 35].

Goldstein, Elliot, Visual Evidence, A Practitioner's Manual (2007), vol. 1, pp. 2-19 to 2-20 [para. 21].

McWilliams, Peter K., Canadian Criminal Evidence (4th Ed.) (2012 Looseleaf Update), vol. 2, para. 20:5 to 20:6 [para. 38].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (6th Ed. 2011), pp. 460 [para. 38]; 466 [para. 35].

Paciocco, David M., Proof and Progress: Coping With The Law of Evidence in a Technological Age (2013), 11:2 C.J.L.T. 181, pp. 197 to 198 [para. 35].

Pattenden, Rosemary, Authenticating "Things" in English Law: Principles for Adducing Tangible Evidence in Common Law Jury Trials (2008), 12 Intl. J. Evidence & Proof 273, p. 275 [para. 20].

Underwood, Graham, and Penner, Jonathan, Electronic Evidence in Canada (2010), pp. 11-34 [para. 35]; 11-35 [para. 38].

Counsel:

J.B. Dartana, for the respondent;

K.A. Quinlan, agent for P.J. Royal, Q.C., for the appellant, Dustin Wade Bulldog;

E.V. McIntyre, for the appellant, Colten Peter Dylan Joe;

K.S. Aujla, for the appellant, Steven Jeffrey Giesler.

These appeals were heard on June 4, 2015, by Côté, Bielby and Brown, JJ.A., of the Alberta Court of Appeal. On July 23, 2015, the court released the following memorandum of judgment.